If you’ve been keeping up with the blog over the past several years, you already know that competitive keyword advertising lawsuits consistently lose in court. So in that sense, today’s blog post isn’t telling you anything new. Yet, it’s still nice to see a court so skillfully dismantle a plaintiff’s arguments.

The litigants compete in the already sketchy world of sports nutrition supplements. Beast Sports allegedly bought banner ads at Amazon triggered by searches for various BPI-related trademarks. The court included a screenshot showing the Beast ad:

The parties dispute whether the banner ad links to Beast’s website or an Amazon page of Beast products.

The court only discusses the initial interest confusion doctrine. It calls initial interest confusion an “unestablished” legal theory in the 11th Circuit, so “courts in this Circuit are reluctant to find this manner of confusion actionable.” BPI responded by citing the old (and terrible) 11th Circuit metatags case, North American Medical v. Axiom. The court distinguishes Axiom because Beast’s ads didn’t contain BPI’s marks in the ad copy. (And just in case you forgot, metatag cases have been, still are and always will be stupid). The court continues:

BPI points to no case indicating that the simple purchase of advertising keywords, without more, may constitute initial interest confusion. As noted, “[i]nitial interest confusion . . . occurs when a customer is lured to a product by the similarity of the mark . . . .” [Promatek v. Equitrac] Thus, the “luring” becomes the critical element. In situations such as the one presented here, the use of a keyword encompassing a competitor’s terms does not necessarily produce an infringing advertisement; it is the content of the advertisement and/or the manner in which the mark is used that creates initial interest confusion.

In other words, the trademark inquiry should shift to the ad copy, not the ad triggering. Good move. The court then says consumers would find Beast’s ad copy to be clear:

Beast’s banner advertisements are uniform, each containing Beast’s house “B” logo, the phrase “Click to Save on Fitness Supplements,” and a clear identification of the advertisement’s sponsor, “Beast Sports Nutrition.”…Further, the link allowing consumers to “shop now” and the distinct line between Beast’s advertisement and the consumer’s search results alerts the consumer viewing the page to the fact that the image is an advertisement for products separate from those already listed in the website’s organic search results. Thus, unlike the advertisement’s triggered in Playboy, Beast’s advertisements do not confuse consumers into believing that the proponent of the advertisement is in some manner affiliated with the general search results displayed on the web page.

Without any cognizable consumer confusion, the court denies BPI’s request for a preliminary injunction.

In a final policy observation, the court says that the venerability and ubiquity of keyword advertising has moved the needle more in favor of defendants:

* initial interest confusion may not be cognizable in the 11th Circuit
* the court says there’s no precedent to support that keyword triggering = initial interest confusion
* the court skillfully distinguishes the technological implications of keyword triggering from metatags, rather than treating them as equivalent (contrast the Florida bar’s initial mistakes on this point)
* the court focuses the trademark inquiry on the ad copy, not keyword triggering
* consumers aren’t likely to be confused by the keyword triggered ads, at least within Amazon’s interface. The court doesn’t discuss the 9th Circuit’s Multi-Time Machine (MTM) v. Amazon ruling even though the disputes have some overlap. Based on the revised 9th Circuit opinion, this court could have drawn some more precedential support for its conclusion that consumers aren’t likely to be confused by Beast’s ads.
* keyword ads are a prevalent and pro-competition business practice

I love opinions like this! Just last week, I awarded the Judge-of-the-Day award to a different Florida federal judge, Judge Mark E. Walker. I wouldn’t normally expect such prowess from Flori-duh courts, but Judge Beth Bloom nevertheless is richly deserving of the Technology & Marketing Law Blog’s judge of the day award.